The Conservative government's controversial attempt to shift a judge from an Ottawa-based court to a Quebec court has been approved by the Supreme Court of Canada.
The court ruled right after hearing arguments that the justice department acted within its constitutional powers in moving Federal Court of Appeal Justice Robert Mainville to the Quebec Court of Appeal. The expert in aboriginal law can now take his seat on that court, nearly a year after his appointment.
The unanimous decision Friday was a vindication for Prime Minister Stephen Harper. It came in a rematch with Toronto lawyer Rocco Galati and the province of Quebec after the Supreme Court's unprecedented rejection last year of a judge Mr. Harper had chosen to join it.
A spokeswoman for Justice Minister Peter MacKay said the government is pleased with the decision and has every confidence Justice Mainville will serve with distinction.
The ruling may soothe hurt feelings among Federal Court judges after the Supreme Court declared them ineligible in the Nadon case for the three Quebec seats on the country's highest court.
The Mainville appointment was controversial because his name had been on a secret list of six candidates for a Supreme Court vacancy, drafted by the Prime Minister's Office in mid-2013. The list was obtained by The Globe and Mail.
Mr. Harper's choice of Justice Marc Nadon of the Federal Court of Appeal to fill that Supreme Court vacancy was rejected after a challenge by Mr. Galati. The court said Federal Court judges lack current knowledge of the unique Quebec civil code and social values. It was the first rejection of a Supreme Court judge since the court was created in 1875.
Not long after the Nadon ruling, the federal justice department announced Justice Mainville's appointment to the Quebec Court of Appeal, prompting another challenge from Mr. Galati. He said he suspected the Conservative government wished to evade the spirit of the Nadon ruling by parking Justice Mainville on the Quebec appeal court, to render him eligible for a future Supreme Court vacancy. The challenge blocked Justice Mainville from taking his seat on the Quebec appeal court, and Mr. Harper appointed Montreal litigator Suzanne Côté when another Quebec seat opened on the Supreme Court.
At its heart, the case against Justice Mainville joining the Quebec Court of Appeal was that Federal Court judges lack current Quebec legal knowledge, and that Quebeckers need to have confidence in their institutions within Canada. But on Friday, after hearing arguments from the federal government, Quebec, Mr. Galati and interveners, the court said this case was different, and involved different wording from a different law.
Chief Justice Marc Noël of the Federal Court of Appeal gave a speech in December in which he decried the effect of the Supreme Court ruling in the Nadon case. "How can one explain to a Quebec candidate, approached to fill a vacancy in our court, that he will be appointed for his civil law training and as a representative of Quebec, but that he will be deemed to no longer have those qualities under the Supreme Court Act from the moment he is sworn in?"
Sébastien Grammond, a University of Ottawa law professor who represented the Canadian Association of Provincial Court Judges in the case, arguing in support of Justice Mainville's appointment, said Federal Court judges would probably appreciate the ruling.
"To the extent some people perceived the Nadon ruling as establishing the proposition that Federal Court judges were a threat to civil law, the Mainville case shows that this was not the basis of the Nadon ruling," he said in an interview. "I think that aspect of the decision will surely be comforting to Federal Court judges."
Mr. Galati was not immediately available for comment.